Bell/Gaerte: 3 things to know about ethical advocacy in closing argument

James J. Bell , K. Michael Gaerte
July 30, 2014
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Bell Gaerte 3 thingsRecently, several published decisions have found attorneys to have engaged in improper advocacy. Most of these decisions have been criminal cases in which prosecutors were found to have engaged in a series of impermissible arguments. In addition, there was one recent disciplinary decision that found an ethical violation when the attorney made unsupported statements in his closing argument. Here are three things to know about ethical advocacy in closing argument.

1. Rule of thumb: Stick to the record.

If you are in the heat of trial and can’t remember anything else from this article, just remember that if you only argue the facts that were entered into evidence, everything else should be smooth sailing. Rule 3.4(e) of the Indiana Rules of Professional Conduct states that “A lawyer shall not . . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.” Furthermore, in a criminal case, “the prosecutor is required to confine her closing argument to comments based upon the evidence presented in the record.” Brummett v. State, 10 N.E.3d 78, 9 (Ind. Ct. App. 2014). Stated in a slightly different way, “[i]t is misconduct for a prosecutor to request the jury to convict a defendant for any reason other than his guilt.” Ryan v. State, 9 N.E.3d 663, 16 (Ind. 2014).

Applying these standards to recent cases, the court has found the following to be improper:

• Characterizing defense counsel’s argument as “how guilty people walk” or a “trick.” Ryan, 9 N.E.3d at 10.

• Requesting that the jury convict the defendant as part of a “bigger picture” and to send a message that stops other perpetrators of sexual misconduct like teachers, coaches or pastors. Id. at16.

• Suggesting that the defendant and defense counsel conspired to fabricate its defense. Brummett, 10 N.E.3d at 11.

2. Improper advocacy can be deemed unethical.

In Matter of M.A., 2014 Ind. LEXIS 507(Ind. 2014), the respondent was found to have violated Rule 3.4(e) of the Indiana Rules of Professional Conduct when he “made a number of inappropriate remarks during closing argument, including telling the jury that this would be a ‘perfect case for punitive damages’” even though the claim for punitive damages had been withdrawn. Id. at 4. In addition, the respondent improperly alluded to “facts that were not supported by admissible evidence, assert[ed] personal knowledge of facts in issue, and stat[ed] his personal opinion as to the justness of his clients’ cause and the credibility of a witness.” Id. at 4-5. The respondent was found in violation of other Rules of Professional Conduct and was sanctioned with a 60-day suspension.

In addition, some of the criminal cases cited above analyzed the Rules of Professional Conduct in evaluating whether the lawyer’s advocacy had been appropriate. For example, in Ryan, the Court of Appeals, quoting the Preamble to the Indiana Rules of Professional Conduct, held that a prosecutor’s improper comments regarding defense counsel were “inconsistent with the requirement that lawyers ‘demonstrate respect for the legal system and for those who serve it, including . . . other lawyers.” See Preamble [5], Ind. Professional Conduct Rules; Ryan, 9 N.E.3d at 10. In addition, the prosecutor’s comment that the witnesses “do not lie about the Defendant,” constituted improper commentary on “the justness of a cause” and the “credibility of a witness” in violation of Rule 3.4(e). Brummett, 10 N.E.3d at 15.

3. Opposing counsel can help stop the improper advocacy.

Whether the attorney is in a criminal or a civil case, the attorney’s opposing counsel has a role to play in preventing misconduct. For example, opposing counsel should know that he or she can open the door to otherwise improper arguments. In Neville v. State, 976 N.E.2d 1252, 1259-60 (Ind. Ct. App. 2012), a prosecutor made a comment in voir dire that could have been interpreted to suggest that a good judge and good defense attorney meant that the jury should not be concerned about a wrongful conviction.

While the court seemed “troubled” by this comment, it also noted that “[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor’s response would otherwise be objectionable.” Id. at 1260 quoting Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). Because the prosecutor was responding to defense counsel’s questioning about wrongful convictions, the court deemed that the comments did not rise to the level of fundamental error. Id.

Finally, opposing counsel obviously needs to object to improper comments. While the conviction in Brummett was reversed, the conviction in Ryan was not. Both cases involved similar arguments from the prosecutor. However, because defense counsel did not object, the judge did not stop the improper arguments at either trial and the cases were analyzed under a fundamental error analysis. While it will never be known what would have happened had a timely objection been made, the chances of a fair trial would have increased.•


James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at or The opinions expressed are those of the authors.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.